Introduction
On Friday I posted Three Questions for Professor Dorf: Stare Decisis and Originalism, prompted by Michael Dorf's illuminating post entitled Stare Decisis and Originalism. Dorf has posted a very helpful and illuminating set of answers to my questions in his post entitled Further Thoughts on Originalism and Stare Decisis--In Response to Prof. Solum. His answers to the questions and his further remarks are careful, thoughtful, and clear. I haven't yet had an opportunity to digest them fully, but I hope to do another post or two later this week that pursues the issues that Dorf has raised.
But Dorf's original post and his new post provide a wonderful opportunity to clarify some of the issues that make repeated appearances in debates about originalism. This post addresses different aspects of Dorf's original post which discusses "Semantic Originalism" and the ongoing debate over how to carve the constitutional theory space using categories like "originalism," "nonoriginalism," and "living constitutionalism." Although I will be using Dorf's original post as a point of departure, this post is not directed at Dorf in particular--instead I am trying to clarify the nature of contemporary debates over originalism, nonoriginalism, and living constitutionalism.
One of the moves that Dorf makes involves a characterization of "public meaning originalism," which Dorf characterizes as "semantic originalism." Here is the passage:
Contemporary "semantic originalists" read the Fourteenth Amendment's language at a hig[h] level of generality and then say either that the semantic meaning itself entails Brown or that the semantic meaning is consistent with Brown, which could be justified as a matter of judicial construction (a kind of filling in or fleshing out) rather than at the level of interpretation (which is a matter of meaning). As I and others have noted before (e.g., here), the move from concrete intentions and expectations to semantic meaning sacrifices most of what made originalism distinctive. Ronald Dworkin was a semantic meaning originalist by current standards. Jack Balkin argues that semantic originalism is consistent with living Constitutionalism. I don't especially like the idea of calling this broad approach to interpretation and construction any kind of "originalism" mostly because I don't like the opportunity for a bait-and-switch. The theory justifies originalism-in-name-only but then the judges in fact deploy old-school-concrete-intentions-and-expectations to delegitmate living Constitutionalism.
This is a rich passage that makes several different moves. Let's break the passage down and deal with each point in detail. We can start with the following. The underlining is mine:
Contemporary "semantic originalists" read the Fourteenth Amendment's language at a hig[h] level of generality and then say either that the semantic meaning itself entails Brown or that the semantic meaning is consistent with Brown, which could be justified as a matter of judicial construction (a kind of filling in or fleshing out) rather than at the level of interpretation (which is a matter of meaning).
Dorf uses the phrase "semantic originalists" to describe what is more commonly called "public meaning originalism." I used that phrase in my working paper (Semantic Originalism) to describe my distinctive version of public meaning originalism, and Dworkin had earlier used the phrase to describe a possible theory that he believed was different from the originalist theories of the period in which he was writing (theories that he rejected). Obviously, I believe that my own theory, which has semantic originalism as a component, is an important form of public meaning originalism, but for the purposes of this post, I want to broaden the topic to include public meaning originalism generally.
The Levels of Generality Pseudo-Problem
With that terminological clarification out of the way, Dorf's point is that public meaning originalism read the language of the Fourteenth Amendment "at a high level of generality." This point is made frequently in discussions of public meaning originalism. There is one sense in which this statement (properly qualified) is correct. Much of the language of the Fourteenth Amendment is general. For example, the words "person" and "citizen" in Section One are general. On any plausible understanding of the phrase "due process" of law, that phrase is general as well (as contrasted, e.g., to the relatively more particular provision of the Fifth Amendment requiring "a presentment or indictment of a grand jury").
Public meaning originalists are committed to the idea that we should understand the words and phrases of the constitutional text as the conventional semantic meaning as fixed at the time the provision was framed and ratified in light of the publicly available context of constitutional communication. Therefore, public meaning originalists are committed to reading the text at the level of generality provided by the communicative content of the text itself--no more but no less.
But there is another way to read Dorf's statement--and similar statements made by many others in debates about originalism. Some critics of originalism implicitly assume that the public meaning of a text can be accurately paraphrased at different levels of generality. This thought seems to originate in a criticism of certain forms of original intentions originalism. One of these forms is original purposes originalism--roughly, the original meaning is the purpose (or intention) that the framers or ratifiers had when they wrote or adopted the text. It is correct that these purposes (or intentions) can be stated a different levels of generality. This is because purpose is an intensional context--note that "intensional" is spelled with an "s" and not a "t". In general, the purpose for which an action is performed can be accurately stated at many different levels of generality. Consider the action of writing this blog post. It is true that I am writing this blog post:
- With the purpose of commenting on Michael Dorf's blog post.
- With the purpose of responding to critics of originalism.
- With the purpose of clarifying issues in constitutional theory.
- With the purpose of advancing debates in legal theory.
I actually had all of these purposes, but they are stated at different levels of generality. If the meaning of the constitutional text just was the purpose for which the text is written, then we would need to specify the level of generality or the text would have a huge number of true meanings. For example, if the purposes of the equal protection clauses included "protecting the former slaves in the states that joined the rebellion" and "protecting persons in all states," we would need to specify which purpose provided the legal content of the clause. If the legal content of the clause were determined by both statements, we would have a big problem, because they have inconsistent implications for constitutional doctrine and for the decision of particular cases.
But this problem does not exist with respect to the communicative content of writings in most cases. We can see this in the examples in the bullet points above. The meaning of "commenting on Michael Dorf's blog post" is less general than "responding to critics of originalism." Semantic meanings express levels of generality. To put it differently, words and phrases have levels of generality baked into their meaning.
Dorf is not using the levels of generality point as a criticism of originalism, and he may well agree the public meaning of a term will usually have a level of generality baked into the meaning. So this is not a criticism of Dorf's post. My purpose is simply to make this clear.
One last point about levels of generality: some words are ambiguous, they have more than one meaning. And sometimes the sense of an ambiguous word will differ with respect to levels of generality. Public meaning originalists typically believe that context will disambiguate, but it is at least possible in some cases, a word or phrase will be irreducibly ambiguous. In those cases, constitutional construction will be required to specify the level of generality, but that is a topic for another day.
Was Ronald Dworkin a Public Meaning Originalist?
Now consider the following passage from the paragraph quoted in the introduction to this post:
As I and others have noted before (e.g., here), the move from concrete intentions and expectations to semantic meaning sacrifices most of what made originalism distinctive. Ronald Dworkin was a semantic meaning originalist by current standards.
I certainly understand why Dorf might believe this, but I think it is clear that Dworkin was not a public meaning originalist. To show this, we first need an account of the criteria that sort constitutionalists theorists as originalist or nonoriginalist. We then need to apply that criterion to Dworkin.
I believe that the best understanding of "originalism" is that it is a family of constitutional theories that is unified by agreement on two ideas. The first of these ideas is the Fixation Thesis: the communicative content (or linguistic meaning) of the constitutional text is fixed at the time each provision is framed and ratified. The second idea is the Constraint Principle: constitutional actors should be constrained by the fixed communicative content of the text. Different originalists affirm different versions of the constraint principle, but I believe that almost all originalists agree that the the minimum level of constraint is constraint as consistency--constitutional actors may not act in a way that is inconsistent with communicative content of the text. Originalists also differ about other matters: public meaning versus original intent, for example.
So was Dworkin a public meaning originalist (or "semantic originalist"). One might think that Dworkin's distinction between "fit" and "justification" leads to the conclusion that he accepts both fixation and constraint. Hercules must identify the set of theories of constitutional law that fits the fixed meaning of the text and then among the theories that fit, Hercules will select that theory that best justifies the text. But that is not Dworkin's view.
In fact, I think Dworkin rejects both the Fixation Thesis and the Constraint Principle, but on this occasion let's just focus on constraint. I think the best way to show this is with an extended quote from Dworkin. It is long, but it shows unequivocally that Dworkin rejects the Constraint Principle and it shows why his theory requires that he reject constraint.
The passage is from The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 83 Fordham L. Rev. 1249, 1259–60 (1997). As you can guess from the title, Dworkin is comparing his views to those of Laurence Tribe and Antonin Scalia. Here is the passage, which includes a quotation from Tribe.
Tribe endorses a very strong form of textual fidelity. Tribe states:
I nonetheless share with Justice Scalia the belief that the Constitution’s written text has primacy and must be deemed the ultimate point of departure, that nothing irreconcilable with the text can properly be considered part of the Constitution; and that some parts of the Constitution cannot plausibly be open to significantly different interpretations.
That is a stronger statement of textual fidelity than I [Dworkin] would myself endorse, because, as I said, precedent and practice over time can, in principle, supersede even so basic a piece of interpretive data as the Constitution’s text when no way of reconciling them all in an overall constructive interpretation can be found.
Of course, Dworkin uses the word "fidelity" instead of "constraint," but it is clear from the context that he does not accept constraint as consistency (the version of constraint upon which almost all originalists agree as minimum). And Dworkin must reject the Constraint Principle, because his theory is holistic: Hercules develops the constructive interpretation that best fits and justifies our constitutional practice as a whole: if the practice (statutes, judicial decisions, executive actions) departs from the text and the best normative theory would endorse the practice, then the text must give way.
Let me add one more minor point: my view is that Tribe is likely not an originalist either. That is because I think it is likely that he would reject the idea that the "meaning" of the text is limited to the fixed communicative content of the text. And even if he has sometimes made statements that sound as if he accepts this view, it seems likely that his views about meaning of particular constitutional provisions are not consistent with fixation and constraint. Or it may be that he does accept fixation and constraint but has a very thin theory of meaning that makes the language of almost all constitutional provisions indeterminate or very underdeterminate. But I have not done the work necessary to be fully confident in these tentative conclusions.
The important point is that public meaning originalism does not absorb all of its rivals. In a work in progress entitled "The Constraint Principle," I identify nine distinct nonoriginalist theories, including Dworkin's theory and eight others: (1) multiple-modalities, (2) common-law constitutionalism, (3) unconstrained popular constitutionalism, (4) the multiple-meanings theory, (5) Supreme Court as superlegislature, (6) unconstrained Thayerianism, (7) antitheoretical views such as pragmatism and particularism, and (8) theoretical eclecticism and its cousin theoretical instrumentalism. In Dorf's most recent post, he suggests John Hart Ely's representation-reinforcement theory might be a tenth form of nonoriginalism--and Ely may well reject the Constraint Principle.
Metalinguistic Negotiation Over the Meaning of "Originalism"
At this point, readers will recognize that there is a lot packed into the paragraph that I quoted in the introduction to this post. Here are the final two sentences:
I don't especially like the idea of calling this broad approach to interpretation and construction any kind of "originalism" mostly because I don't like the opportunity for a bait-and-switch. The theory justifies originalism-in-name-only but then the judges in fact deploy old-school-concrete-intentions-and-expectations to delegitimate living Constitutionalism.
There are two separate ideas in these sentences. I fully agree with Dorf that a bait-and-switch approach to constitutional theory should be criticized. A theoretical bait-and-switch would involve deception. Deception is always (or almost always) a bad thing. Deception in theoretical discourse is especially bad--because constitutional theory should be oriented towards the search for truth and not the achievement of particular political results.
But I also want to be clear that originalists can sometimes appeal to concrete intentions and expectations without engaging in a bait and switch. Let me simplify for the sake of clarity and focus on conventional semantic meanings and contextual disambiguation. Suppose that some word, phrase, or clause contains a semantic ambiguity (more than one possible meaning). In ordinary communication and in constitutional interpretation, we resort to context to disambiguate. If there is evidence of expectations that favors one sense of the ambiguous provision over another and that evidence is part of the public context of constitutional communication (or evidence of that context), then it may be properly considered in determining the public meaning. But it is the public meaning that governs and not the "original expected application" (to use Balkin's felicitous phrase). Evidentiary use of expectations is not a bait and switch.
But now consider the Dorf's point about what we call "originalism." His proposal seems to be that we should limit the label "originalism" to a very limited set of theories, e.g., a set limited to what is sometimes called "original expected applications originalism" and similar views. If you follow debates about originalism, you will know that this is a familiar type of move. Proponents and critics of originalism frequently disagree about what counts as "originalism." And this should not be surprising. "Originalism" (the word) was invented by Paul Brest in his famous "The Misguided Quest for the Original Understanding." He didn't define it precisely, and as debates about originalism progressed different theorists used his imprecise terminology in slightly different ways.
But if we are debating about originalism as a theory we need some way to avoid confusion introduced by inconsistent understandings as to what "originalism" is. One way to avoid confusion is by adopting stipulated definitions. We could have "strong originalism" and "weak originalism" or "exclusive originalism" and "inclusive originalism." Or a given writer could stipulate a definition for "originalism," "nonoriginalism," and "living constitutionalism." This strategy could work if we could agreement among theorists about the stipulations, but it rapidly becomes awkward if different theorists insist on inconsistent stipulations. We start saying things like: "This objection does not apply to originalism as defined by Solum, but it does apply with full force to originalism as defined by Dorf and partially applies to originalism as defined by Baude and Sachs.
You might ask, "Why wouldn't theorists converge on a consistent set of stipulated definitions?" Dorf's post provides an example that shows why this is sometimes difficult. Dorf advances a normative reason for using an extremely narrow definition of originalism--avoiding a bait and switch. This is an example of a quite general phenomenon which philosophers of language have called "metalinquistic negotiation." If we engage in metalinguistic negotiation over "originalism," it is unlikely that we are arguing about the essential structure of the concept. "Originalism" is a theory word and it is used by theorists to label a set of theoretical positions. So metalinguistic negotiation is responsive to what we might call "conceptual ethics"--the normative considerations that bear on the shape of our concepts and our use of language to cleave conceptual space.
One consideration that is highly relevant to metalinguistic negotiation over the word "originalism" is usage--more precisely, patterns of usage. How is the word "originalism" used by constitutional theorists and constitutional actors (lawyers, judges, officials, etc.)? I have argued that usage reveals that originalism is a family of theories unified by fixation and constraint--as discussed above. This understanding of originalism has the great virtue of capturing the way that self-identified originalists use the word "originalism." Dorf's much narrower definition of originalism does not cohere well with usage. It would exclude Brest's very broad definition of originalism, for example. Dorf's definition even excludes Justice Scalia's view (public meaning originalism). It excludes the versions of originalism that emerged in the 1990s in response to Scalia, including views advanced by Barnett, Calabresi, Lawson, Paulsen, and Whittington. And it excludes contemporary intentionalists (such as Larry Alexander) who endorse the view that the relevant intentions are the communicative intentions of the framers (and not their purposes or aims). Indeed, I do not know a single constitutional theorist who self-identifies as an originalist and limits the term "originalism" to original expectations originalism.
Dorf is worried about a bait and switch. His scenario is that public meaning originalism is articulated as a theory, but original expected application originalism is used in practice by judges. Of course, restricting the use of "originalism" cannot prevent the bait and switch: whatever definitions we use, judges can misrepresent what they do. Indeed, one might argue that at this stage, the best way to combat the bait and switch is simply to point out that public meaning originalism limits original expected applications to an evidentiary role.
Moreover, the force of the bait and switch argument depends on the evidence. Surely, we would not want to adopt a new definition of originalism that does a poor job of accounting for usage on the ground that it is possible that some judges will engage in a bait and switch. Moreover, it is quite possible that some judges who overvalue original expectations evidence do so in good faith. The sophisticated versions of public meaning originalism that began to develop in the 1990s in response to Scalia's interventions in the 1980s are still unfamiliar to most judges. The remedy for that problem is judicial education and the incorporation of originalist theory in the basic constitutional law curriculum. (And other theories as well!) Efforts are already along to establish programs that will enable lawyers, law clerks, judges, and other officials to do originalism well--not only at the theoretical level, but also at the more practical level of doing good originalist research that takes context into account and avoids "cherry picking"--a problem that is pervasive in legal argumentation generally because of the adversarial nature of our system.
And if the possibility of bait and switch gives us a good and sufficient reason to avoid the use of a theory term, then our theoretical vocabulary is in trouble. "Living constitutionalism" is sometimes used to convey the idea that one can affirm fidelity to the constitutional text while simultaneously believing that the content of constitutional doctrine should evolve in response to changing values and circumstances. But there is the possibility of a bait and switch. Some judges may use the phrase "living constitutionalism" but in fact engage in a nakedly ideological enterprise that disguises departures from the constitutional text with sophistry. If the possibility of bait and switch is enough to guide our usage, perhaps we should do away with this label altogether and substitute "anticonstitutionalism" as the name for any theory that does not endorse the Constraint Principle.
But in my opinion, that would be silly. There is room for argument about how we should use the word "originalism," but the there is extensive evidence for the notion that originalism is a family of constitutional theories mostly (but not completely) unified by fixation and constraint. One could argue about the precise dividing line: I have argued for "constraint as consistency"--constitutional practice must be consistent with the original meaning of the text, but I can imagine different formulations that would capture most of the usage. But any approach that captures most or almost all of the usage would seem to have an advantage over the proposal to limit the term "originalism" to expected applications originalism, a view disavowed by almost all originalist theorists and by the major originalist judges--recognizing that the evidentiary use of expected applications is acceptable to almost all contemporary originalists as well.
There is another problem with Dorf's definition of originalism. The theory that the meaning of the constitutional text is constituted by original expectations about originalism is not a coherent theory. It runs into the objections that prompted the shift to public meaning in the first place. Original expectations are likely to be inconsistent, because different framers, ratifiers, or members of the public had different expectations about applications. And the original expectations will quickly run out--since there will be many topics that were not foreseen and hence where there are no original expectations. I could go on, but the important point is that we should be wary about any attempt by opponents of a theory to define the theory in a way that makes the theory obviously false but does not capture the way the theory is developed by those who self identify as proponents of the theory. Definitional moves of that kind are likely to be misleading and to confuse rather than clarify the theoretical issues.
Conclusion
Let me close by once again thanking Michael Dorf for his illuminating post. On this occasion, I have used his post to add a few clarifying points to the discussion. And I have disagreed with the rationale he offered for his metalinguistic proposal. But most of all, I have learned from Dorf--as I always do.
